from the the-public-is-too-stupid-to-know-what's-good-for-it dept

Former NSA head Michael Hayden's (presumably unpaid) goodwill tour on behalf of the Agency-Most-Likely-To-Go-Rogue continues. Following up a memorable interview with CBS News in which he called Ed Snowden a "traitor" and ignored questions about the legality of installing exploits in computer hardware and pushing for adoption of compromised encryption methods, Hayden stopped in to speak with USA Today.

Hayden first goes wrong when explaining why the NSA shouldn't have to change.

"Right now, since there have been no abuses and almost all the court decisions on this program have held that it's constitutional, I really don't know what problem we're trying to solve by changing how we do this," he said, saying the debate was sparked after "somebody stirred up the crowd." That's a reference to Snowden, who was granted asylum in Russia.

Saying there have been "no abuses" is clearly untrue. The agency itself has admitted to several abuses (although the NSA frames them as errors, rather than deliberate misuse of the system) and others have leaked information on others the agency hasn't been particularly forthcoming about. (LOVEINT, anyone?)

Hayden also applies a bit of misdirection by narrowing the focus to the Section 215 program. There are many other programs that are at least as dubious in terms of constitutionality. But this one is the safe pick -- the one that relies on the Third Party Doctrine and the fact that it's been almost impossible until just recently for anyone to be granted standing to bring a lawsuit against the government for civil liberties violations committed by the agency.

Lastly, trying to dismiss Snowden as a rabble rouser makes the implicit suggestion that everything the NSA does is perfectly normal, legal and no big deal. If it "looks bad," it's only because a former analyst somehow made it look bad by exposing the inner workings. In other words, the problem isn't the agency's programs -- it's the easily-ired public.

And as far as dealing with the public's reaction to these leaks goes, Hayden's suggestion to the administration is to ignore the outrage and do what's "right" (in the eyes of the agency).

"Here I think it's going to require some political courage," said Hayden, 68, a retired Air Force general whose service in the nation's top intelligence posts gives him particular standing. "Frankly, the president is going to have to use some of his personal and political capital to keep doing these things..."

"President Obama now has the burden of simply doing the right thing […] And I think some of the right things with regard to the commission's recommendations are not the popular things. They may not poll real well right now. They'll poll damn well after the next attack, all right?"

According to Hayden, the NSA is right and the public is wrong, even if it doesn't realize it. Obama and those that follow him will just need to trust the agency and not worry too much about the public's opinion. Hayden says the government needs to make the tough decision to protect the surveillance status quo. If the administration chooses to roll things back, and another 9/11 occurs because of this (this is very specious reasoning), rescinding these restrictions will suddenly poll extremely well, at least according to Hayden.

But that's an assumption that only the NSA defenders make. Somehow they've arrived at the conclusion that the public will always clamor for increased security and fewer civil liberties in the wake of a terrorist attack. This is based on the prevailing perception of the public's attitude shortly after the 9/11 attacks. But the recent attack in Boston didn't result in citizens asking for more cameras, cops and pervasive surveillance. In fact, many Bostonians were shocked that the city was so quick to effectively put the city under martial law and perform house-to-house searches for the one of the suspects. The only people asking for more government intrusion were government officials and law enforcement heads already prone to pushing for greater power and expanded surveillance.

Moving on from these baffling assertions, Hayden then rejects nearly every other recommendation from the presidential commission. He claims Section 215 data would be more "secure" and "private" if stored by the NSA, rather than held by private companies. He also stated the agency shouldn't be forced to seek court orders before querying the collection, saying this would "reverse" changes made post-9/11. This, of course, ignores the fact that the agency had to do exactly that (court orders for searching the database) after it screwed up the Section 215 program so thoroughly FISC judge Reggie Walton nearly shut the whole thing down.

Hayden, like many NSA defenders, increasingly appears to be living in an alternate reality where the leaks and documents freed via lawsuits against the government haven't exposed a great deal of agency abuse and misuse of its power and data collections. Each successive revelation furthers the notion that the agency has used several decades of darkness to insert itself into worldwide communications in ways that no one charged with oversight would have reasonably imagined. This makes all the claims about legality and protecting the country ring hollow. The agency's capabilities far surpass what's necessary to achieve its aims, and exceed what any rational person would believe to be protected by law.

from the that-story's-not-working dept

One of the key responses from the NSA and its defenders to all of these Snowden leaks is that there is "rigorous oversight" of the NSA by the courts and Congress. Of course, that talking point has been debunked thoroughly, but NSA defenders keep trotting it out. It appears that the public is not buying it. At all. A recent poll from YouGov found that only 17% of people believe that Congress provides "adequate oversight" on the spying of Americans. A marginally better 20% (though, within the 4.6% margin of error, so meaningless difference really) felt that Congress provides adequate oversight of the NSA when it comes to collecting data on foreigners. Basically, that part of the NSA story just isn't particularly believable in light of everything that's come out. Oh, and people are paying attention to the news. A full 87% had heard something about the spying on foreign countries -- with only 14% thinking that such a program has helped US interests abroad.

Oh, and it gets worse. According to a different study, the more informed people are about the NSA, the less they like what the NSA is doing. The NSA has been insisting if people could only understand more about its actions they'd be much more comfortable with the agency's actions, but this study suggests that's not quite true either.

Neither of these findings should come as a shock to most people outside of the NSA, but for our friends over at the NSA reading this, it would appear that your talking points aren't working. Perhaps, next time, try (1) telling the truth and (2) not trampling all over the Constitution.

"Overall, 47% say their greater concern about government anti-terrorism policies is that they have gone too far in restricting the average person's civil liberties, while 35% say they are more concerned that policies have not gone far enough to protect the country. This is the first time in Pew Research polling that more have expressed concern over civil liberties than protection from terrorism since the question was first asked in 2004."

The fear-mongering and FUD about "terrorism!" at every turn seems to have served the government well for over a decade in eroding civil liberties -- but it looks like the Snowden revelations about what the government is really doing is finally shifting things back in the other direction. It's about time.

from the i'm-not-angry;-i'm-disappointed dept

Results of a recent survey have just been released by the Pew Research Center and its discoveries are a bit surprising and a bit disappointing. After seeing a large surge in the percentage of people who were unwilling to sacrifice more civil liberties to fight terrorism (last month's post-Boston Bombing TIME/CNN poll), today's poll release swings back in the other direction. According to Pew's poll, a majority of Americans think the NSA's phone records dragnet is perfectly fine in the context of fighting terrorism.

A majority of Americans – 56% – say the National Security Agency’s (NSA) program tracking the telephone records of millions of Americans is an acceptable way for the government to investigate terrorism, though a substantial minority – 41% – say it is unacceptable. And while the public is more evenly divided over the government’s monitoring of email and other online activities to prevent possible terrorism, these views are largely unchanged since 2002, shortly after the 9/11 terrorist attacks.Currently 62% say it is more important for the federal government to investigate possible terrorist threats, even if that intrudes on personal privacy. Just 34% say it is more important for the government not to intrude on personal privacy, even if that limits its ability to investigate possible terrorist threats.

While it's tempting to believe a large number of Americans simply haven't been paying attention for the last 11 years, the more probable explanation for the consistent support of government monitoring is the hypocrisy of partisan politics. Republicans and Democrats have shown their support of government surveillance is directly tied to whoever's currently in the White House.

Republicans and Democrats have had very different views of the two operations. Today, only about half of Republicans (52%) say it is acceptable for the NSA to obtain court orders to track phone call records of millions of Americans to investigate terrorism. In January 2006, fully 75% of Republicans said it was acceptable for the NSA to investigate suspected terrorists by listing in on phone calls and reading emails without court approval.

Democrats now view the NSA’s phone surveillance as acceptable by 64% to 34%. In January 2006, by a similar margin (61% to 36%), Democrats said it was unacceptable for the NSA to scrutinize phone calls and emails of suspected terrorists.

There, in bold black and white, is one of the most damning indictments of the two party system and its attendant illusion of choice. Two different parties in control. Same outcome. The only thing that changes is the party affiliation of the indignant. Oddly, "Independents" have increased their support of surveillance programs over the same period, a stat that serves as a reminder that it's not just libertarians self-identifying as independent.

On a slightly more positive note, Americans are more protective of their internet usage, with a slight majority (52%) saying the government should not be allowed to monitor email and "other internet activities" in order to track down terrorists. Sadly, this too can probably be chalked up to a change in presidents, with Republicans jumping 13% in their disapproval from 2006 to 2013 and Democrats dropping their disapproval 8% over the same period.

Most voters oppose the U.S. government’s secret collection of the phone records of millions of Americans and think the feds are spying too much on U.S. citizens these days. Just 26% of Likely U.S. Voters favor the government’s secret collecting of these phone records for national security purposes regardless of whether there is any suspicion of wrongdoing. The latest Rasmussen Reports national telephone survey finds that 59% are opposed to the practice.

It appears as though certain words -- like "terrorism" -- tend to trigger more supportive answers.

As you may know, it has been reported that the National Security Agency has been getting secret court orders to track telephone call records of MILLIONS of Americans in an effort to investigate terrorism. Would you consider this access to telephone call records an acceptable or unacceptable way for the federal government to investigate terrorism?

The federal government has been secretly collecting the phone records of millions of Americans for national security purposes regardless of whether there is any suspicion of wrongdoing. Do you favor or oppose the government’s secret collecting of these phone records?

Both questions have their own tilt. Pew uses the word "terrorism," which tends to provoke stronger emotional responses. It also gives the NSA's action an overarching purpose where Rasmussen's wording places more emphasis on secrecy and the lack of reasonable suspicion inherent in the NSA's data harvesting. Rasmussen skews things even further in other questions, including this one, which presents only one "correct" answer (logically).

Is the U.S. government spying too much on Americans these days, not enough or is the level of spying about right?

Where does the public's opinion actually lie? It's tough to say as both polls use language which could skew results. A certain percentage of Americans are willing to accept rights erosion in exchange for fighting terrorism. Legislators still exploit this angle to push through questionable bills and excuse existing policies. Rasmussen's question exchanges "terrorism" for "national security," a term that doesn't have nearly the same emotional impact. Two very different outcomes to ostensibly the same question.

Pew's more thorough poll does alert us to the fact that a majority of the population is either ambivalent to the NSA's actions -- or completely unaware. Only 27% of respondents claim to be following the story closely, with those polling as opposed to the NSA's data harvesting holding a slight lead over those who support these efforts. This low level of engagement isn't uncommon and has helped to ensure that questionable Bush-era policies remain in place years down the road, in some cases being expanded by the current administration. Hopefully, this latest round of leaks will grab the attention of more of the population and bring with it some much-needed transparency and change within the system.

from the funny-cause-it's-true dept

About a year ago, Matthew Inman wrote a short article highlighting Funnyjunk, one of the many image aggregating sites on the internet. This article, titled What should I do about FunnyJunk.com? was a short exploration of his impression of the site and some of the complaints he had about it. Primary among them was that the site hosted copies of his comics without attribution or links back to his site. Other than that, his complaints revolved around the shear ugliness of the site (they still have not updated it). He ended that exploration with a level-headed look at the big picture.

I realize that trying to police copyright infringement on the internet is like strolling into the Vietnamese jungle circa 1964 and politely asking everyone to use squirt guns. I know that if FunnyJunk disappeared fifty other clones would pop up to take its place overnight, but I felt I had to say something about what they're doing.

No legal threats. No claims that this site was destroying his business. Just a recognition of the issues and a call for a discussion about it with Funnyjunk. Funnyjunk then responded with a rather hyperbolic claim that The Oatmeal was going to sue the site and have it shut down. Clearly not the case. Matthew had thought that was the end of the issue. Until recently.

Yesterday, Matthew wrote on his blog that Funnyjunk has sent him legal papers threatening the Oatmeal with a defamation suit. The letter makes a wide array of claims, some correct and some just outright weird. Matthew does a fairly good job of taking apart each of the claims against The Oatmeal. So I will let you read through those on your own. Our interests lie, rather, in some of the finer points of this dispute.

Funnyjunk, as a user generated content site, is probably protected by the DMCA, something it goes through great pains in its legal letter to explain. Much like Imgur or Youtube, as long as it complies with the DMCA (i.e., has a registered agent, properly responds to takedowns, does not "induce" infringement), it is likely protected. However, that really isn't at issue here. No one but Funnyjunk has brought up the DMCA or talked about lawsuits.

Instead, I think it is time to hearken back to a few years ago when we talked about something similar happening in the comedy business. The idea is that social mores and rules can result in punishment of what society feels is unfair or unethical. So although Funnyjunk is working within the bounds of current law, it was still perceived as doing something unethical and the community responded appropriately. Much the same way the comedian who copied his jokes was shunned by the community.

Which leads us to one of the key complaints made by Funnyjunk, that Matthew's blog post "injured Funnyjunk in its trade, business or profession." That is most likely true considering the power of enforcement through social norms. The Oatmeal has a very strong following around the internet (274,924 followers on Twitter, nearly 600,000 on Facebook). So of course those people would be upset when Matthew is upset and they would probably respond in kind (it helps when Matthew actually asks his fans to respond). This is completely normal. But telling people your opinion as to why you dislike a particular site, and letting them make their own decision about it isn't illegal. It's kind of the crux of how our system of free expression works.

Perhaps most interesting of all, Matthew has also taken this public shaming of Funnyjunk to a new level. In response to this legal threat demanding $20,000, Matthew has decided to instead raise that money and donate it to charity. He has done this because he feels that Funnyjunk's claim of defamation has no merit and he does not want to deal with a lawsuit over the next year. As a result of this very public slap in the face, The Oatmeal raised $20,000 in 64 minutes. It has raised over $100,000 at the time of this writing. None of which is going to Funnyjunk.

In the end, it seems like a great lesson from pretty much every direction. It's an example of where you don't need to rely on laws to make things right -- and, in fact, the one party who tried to rely on laws (by being way way way way too overaggressive) gets "punished" in the court of public opinion instead. Seems like a good solution all around... though we haven't yet seen how Funkyjunk will respond. If they're smart, they'll either apologize (very very publicly) or just shut up about all of this.

from the and-yet-it-goes-forward dept

Now, to be clear: this is an online (or, rather, on phone) survey, and there are certainly questions you can raise about whether it's a representative sample of Americans. However, we've yet to see any real indication that the American populace is happy about this bill. Every single effort to get American people to speak out in favor of this bill has failed. Hollywood is spending a ton on advertising in favor of these bills, and yet it doesn't seem to be having any effect at all. Instead, tons of people are coming out of the woodwork against these bills. And the momentum keeps growing. Congress may keep trying to rush these bills through, but at some point they have to realize their constituents are not at all happy.